CITATION: R. v. Hayes, 2016 ONSC 7607
COURT FILE NO.: 015/15
DATE: 2016/12/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Serge Hamel, for the Applicant
Applicant
- and -
MATHEW JAMES HAYES
James Harbic and Robert Harbic, for the Respondent
Respondent
HEARD: November 16, 2016
PUBLICATION RESTRICTION NOTICE
Pursuant to s. 648(1) of the Criminal Code, no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
REASONS FOR DECISION ON THIRD PARTY SUSPECT APPLICATION (#2)
ellies j.
[1] Mathew Hayes is on trial for first degree murder. The Crown alleges he killed Christopher Parsons in the early morning hours of June 4, 2013, in Parsons’ apartment.
[2] The trial began on November 7, 2016. In September, the defence brought an application for permission to raise the possibility that the murder was committed by others (the “original third party suspect application”). I granted the application regarding Vanessa Tracey, a young woman who was seeing Parsons on a regular basis before he died. I denied the application regarding two other potential suspects, Laura Heavens and Roger Busch. My reasons on the original third party suspect application are found at 2016 ONSC 6103.
[3] After the trial began, just after the defence began to cross-examine Chantal Bujold, a Crown witness, counsel for the accused brought an application to pursue Bujold as another third party suspect. I granted the application, for the following reasons.
[4] Parsons’ body was found at about 7:30 a.m. on June 4, 2013, by Heavens. Heavens had been living with Parsons at the time, but had spent the night elsewhere. Parsons was lying face down in a pool of blood. There were signs that some sort of a struggle had occurred before he died. His body was located partially on top of, and partially underneath, a rack of clothes, which had toppled over.
[5] A number of days after Parsons’ body was discovered, the police found a used condom under a pile of clothes in the kitchen of Parsons’ apartment. Subsequent testing revealed the DNA of three people on the condom; namely, Parsons, Tracey and Bujold.
[6] In my reasons in the original third party application, I reviewed the law applicable to applications of this kind. I do not intend to repeat that exercise here. I found that the defence had established the requisite air of reality to the defence with respect to Tracey. I held that the following factors, among others, established a sufficient connection between Tracey and the offence, namely:
• that Parsons had been texting Tracey in the early morning hours of June 4, 2013, about getting together to have sex;
• that Parsons was naked when Heavens found him;
• that the oven in Parsons’ apartment was on and a pan of Shepherd’s pie was open on the stove at the time his body was found, suggesting he was probably awake in the period of time before he was killed, rather than asleep;
• that there were no signs of forced entry inter Parsons’ apartment, suggesting that whoever killed him was known to him;
• that Tracey was a heavy-set woman at the time of Parsons’ death, and therefore not substantially outweighed by Parsons;
• that Tracey had a motive for killing Parsons; and
• that the presence of a condom with Tracey’s DNA on it in Parsons’ apartment was at odds with what Tracey had said previously about her relationship with Parsons.
[7] All of these factors also connect Bujold to the crime.
[8] Bujold testified that she and Parsons had been friends for about ten years before his death. However, they were not just friends. They were “friends with benefits” as Bujold put it. The benefit to Parsons was sex, in one form or another. The benefit to Bujold was payment, in one form or another.
[9] Bujold testified that she and Parsons had had sexual intercourse shortly before Parsons was killed. Bujold testified that the sexual intercourse occurred at her residence. She said that Parsons had worn a condom on that occasion and on every previous one. She testified that she saw Parsons put the condom on before having sexual intercourse and that she saw the condom in the garbage in her bathroom after the intercourse was finished. She said she believes that she threw the garbage out. Most importantly, Bujold testified that she had never had sexual contact with Parsons in the apartment in which he was living at the time he was killed.
[10] Bujold also testified that she had just gotten out of jail shortly before Parsons was killed. She had been sent to jail, she testified, because Parsons provided information to the police about her theft of $400 from the gas bar at which Parsons worked. This testimony prompted the defence application.
[11] In my view, there is enough of a connection between Bujold and the death of Parsons to give an air of reality to the possibility that she was involved in killing him.
[12] The Crown resisted the defence application on the basis that it was prejudiced by the fact that the application was brought so late in the trial. However, the Crown was unable to articulate exactly how it was prejudiced during argument. After I delivered my decision and before these reasons were prepared, the Crown did indicate that it would have elicited information from Heavens in relation to Bujold that it did not obtain from Heavens when she was on the witness stand. In order to remedy that problem, I have granted the Crown permission to recall Heavens before it closes its case. No other prejudice to the Crown has been identified.
Ellies J.
Released: December 7, 2016
CITATION: R. v. Hayes, 2016 ONSC 7607
COURT FILE NO.: 015/15
DATE: 2016/12/07
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
MATHEW HAYES
Respondent
REASONS FOR DECISION ON THIRD PARTY SUSPECT APPLICATION (#2)
Ellies J.
Released: December 7, 2016